Economic Efficiency: The Sole Concern of Modern Antitrust Policy? Non-efficiency Considerations under Article 101 TFEU

Over the past decade, we have witnessed an apparent convergence of views among competition agency officials in the European Union and the United States on the appropriate goals of competition law enforcement. Antitrust policy, it is now suggested, should focus on enhancing economic efficiency, which we are to believe will promote consumer welfare. Recent EU Commission Guidelines on the application of Article 101 TFEU appear to banish considerations that cannot be construed as having an economic efficiency value – such as the environment, cultural policy, employment, public health, and consumer protection – from the application of Article 101 TFEU.

Arguing that the professed adoption of an exclusive efficiency approach to Article 101 TFEU does not preclude, but rather obfuscates the role of non-efficiency considerations, the author of this timely contribution accomplishes the following objectives:

• traces the genesis of the shift to an efficiency orientation in EU and US antitrust policy and dispels several ingrained misconceptions that underpin it;

• demonstrates the close interrelationship between evolving images of the purpose of antitrust, the development of related enforcement norms, and enforcement output;

• provides in-depth analyses of a number of analytically rich cases in the audiovisual sector (and particularly those related to sports rights); and

• explores what the role of non-efficiency considerations in the application of Article 101 TFEU could and should be under the modernized enforcement regime.

This book has no predecessors or peers in its detailed scrutiny of the main justifications for precluding non-efficiency ends from antitrust law and policy. With its valuable lessons about the practical importance of the choice of and emphasis upon goals, this incomparable book has a great deal to offer all practitioners, policymakers, and academics concerned with the future of competition law in Europe and beyond.

Foreword by William E Kovacic, Global Professor of Competition Law and Policy, George Washington University Law School.